Ohio-2011-HB61-Introduced

Sec. 4111.05. The director of commerce shall adopt rules in

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accordance with Chapter 119. of the Revised Code as the director

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considers appropriate to carry out the purposes of sections

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4111.01 to 4111.17 of the Revised Code. The rules may be amended

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from time to time and may include, but are not limited to, rules

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defining and governing apprentices, their number, proportion, and

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length of service; bonuses and special pay for special or extra

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work; permitted deductions or charges to employees for board,

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lodging, apparel, or other facilities or services customarily

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furnished by employers to employees; inclusion of ascertainable

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gratuities in wages paid; allowances for unascertainable

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gratuities or for other special conditions or circumstances which

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may be usual in particular employer-employee relationships;

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compensatory time off for employees under section 4111.031 of the

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Revised Code; and the method of computation or the period of time

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over which wages may be averaged to determine whether the minimum

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wage or overtime rate has been paid.

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Sec. 4111.03. (A) AnExcept as otherwise provided in section	10
4111.031 of the Revised Code, an employer shall pay an employee	11
for overtime at a wage rate of one and one-half times the	12
employee's wage rate for hours worked in excess of forty hours in	13
one ~~workweek~~work week, in the manner and methods provided in and	14
subject to the exemptions of section 7 and section 13 of the	15
"Fair Labor Standards Act of 1938," 52 Stat. 1060, 29 U.S.C.A.	16
207, 213, as amended.	17

Any employee employed in agriculture shall not be covered by	18
the overtime provision of this section.	19

(B) If a county employee elects to take compensatory time off	20
in lieu of overtime pay, for any overtime worked, compensatory	21
time off may be granted by the employee's administrative superior,	22
on a time and one-half basis, at a time mutually convenient to	23
the employee and the administrative superior within one hundred	24
eighty days after the overtime is worked.	25

(C) A county appointing authority with the exception of the	26
county department of job and family services may, by rule or	27
resolution as is appropriate, indicate the authority's intention	28
not to be bound by division (B) of this section, and to adopt a	29
different policy for the calculation and payment of overtime than	30
that established by that division. Upon adoption, the alternative	31
overtime policy prevails. Prior to the adoption of an alternative	32
overtime policy, a county appointing authority with the exception	33
of the county department of job and family services shall give a	34
written notice of the alternative policy to each employee at least	35
ten days prior to its effective date.	36

(D) As used in this section and section 4111.031 of the	37
Revised Code:	38

Section 1. That sections 4111.03, 4111.05, 4111.10, 4111.13,	7
and 4111.99 be amended and section 4111.031 of the Revised Code be	8
enacted to read as follows:	9

(1) "Compensatory time off" means hours during which an	39
employee is not working that are not counted as hours worked	40
during the applicable work week or other work period for purposes	41
of overtime compensation and for which the employer compensates	42
the employee at the employee's regular rate of pay.	43

(2) "Collective bargaining agreement" means an agreement	44
entered into between the representative of an employer and the	45
exclusive representative of employees in an appropriate unit	46
regarding the conditions of employment affecting the employees.	47

~~(2)~~(4) "Employer" means the state of Ohio, its	49
instrumentalities, and its political subdivisions and their	50
instrumentalities, any individual, partnership, association,	51
corporation, business trust, or any person or group of persons,	52
acting in the interest of an employer in relation to an employee,	53
but does not include an employer whose annual gross volume of	54
sales made for business done is less than one hundred fifty	55
thousand dollars, exclusive of excise taxes at the retail level	56
which are separately stated.	57

~~(3)~~(5) "Employee" means any individual employed by an	58
employer but does not include:	59

(b) Any individual employed as a baby-sitter in the	61
employer's home, or a live-in companion to a sick, convalescing,	62
or elderly person whose principal duties do not include	63
housekeeping;	64

(c) Any individual engaged in the delivery of newspapers to	65
the consumer;	66

(d) Any individual employed as an outside salesperson	67
compensated by commissions or employed in a bona fide executive,	68
administrative, or professional capacity as such terms are defined	69
by the "Fair Labor Standards Act of 1938," 52 Stat. 1060, 29	70
U.S.C.A. 201, as amended;	71

(e) Any individual who works or provides personal services of	72
a charitable nature in a hospital or health institution for which	73
compensation is not sought or contemplated;	74

(f) A member of a police or fire protection agency or student	75
employed on a part-time or seasonal basis by a political	76
subdivision of this state;	77

(g) Any individual in the employ of a camp or recreational	78
area for children under eighteen years of age and owned and	79
operated by a nonprofit organization or group of organizations	80
described in Section 501 (c)(3) of the "Internal Revenue Code of	81
1954," and exempt from income tax under Section 501 (a) of that	82
code;	83

(h) Any individual employed directly by the house of	84
representatives or directly by the senate.	85

(7) "Regular rate" includes all remuneration for employment	94
paid to, or on behalf of, an employee except:	95

(a) Sums paid as gifts, or payments in the nature of gifts	96
made on the occasion of a holiday or other special occasion as a	97
reward for service, the amounts of which are not measured by or	98
dependent on hours worked, production, or efficiency;	99

(6) "Exclusive representative" means any labor or employee	86
organization that is certified as the exclusive representative of	87
employees under the "National Labor Relations Act," 49 Stat. 449	88
(1935), 29 U.S.C. 151, as amended, or Chapter 4117. of the Revised	89
Code, or that is recognized by an employer, immediately before the	90
effective date of this amendment and for any time that recognition	91
continues thereafter, as the exclusive representative of	92
employees in an appropriate unit.	93

(b) Payments made for occasional periods when no work is	100
performed due to vacation, holiday, illness, failure of the	101
employer to provide sufficient work, or other similar cause,	102
reasonable payment for traveling expenses or other expenses	103
incurred by an employee in the furtherance of the employer's	104
interests and properly reimbursable by the employer, and other	105
similar payments to an employee that are not made as compensation	106
for hours of employment;	107

(c) Sums paid in recognition of services performed during a	108
given period if any of the following applies:	109

(i) The decision to make payment and the amount of the	110
payment is determined at the sole discretion of the employer at or	111
near the end of the period, and not pursuant to any prior	112
contract, agreement, or promise causing the employee to expect the	113
payments regularly.	114

(ii) The payments are made pursuant to a bona fide	115
profit-sharing plan or trust or bona fide thrift or savings plan.	116

(iii) The payments are talent fees paid to performers,	117
including announcers, on radio and television programs.	118

(d) Contributions irrevocably made by an employer to a	119
trustee or third person pursuant to a bona fide plan for providing	120
old-age, retirement, life, accident, or health insurance or	121
similar benefits for employees;	122

(e) Extra compensation provided by a premium rate paid for	123
certain hours worked by the employee in a day or work week because	124
the hours are worked in excess of eight in a day or in excess of	125
the maximum work week applicable to the employee under division	126
(A) of this section or, if the extra compensation and premium rate	127
is not paid under an employment contract or collective bargaining	128
agreement as provided under division (D)(7)(g) of this section, in	129
excess of the employee's normal or regular working hours;	130

(f) Extra compensation provided by a premium rate paid for	131
work by the employee on Saturdays, Sundays, holidays, or regular	132
days of rest, or on the sixth or seventh day of the work week	133
where the premium rate is not less than one and one-half times the	134
rate established in good faith for like work performed during	135
nonovertime hours on other days;	136

(g) Extra compensation provided by a premium rate paid to an	137
employee under an applicable employment contract or collective	138
bargaining agreement, for work outside of the hours established in	139
good faith by the contract or agreement and outside of the basic,	140
normal, or regular workday that does not exceed eight hours, or of	141
the work week that does not exceed the maximum work week	142
applicable to the employee under division (A) of this section,	143
where the premium rate is not less than one and one-half times	144
the rate established in good faith by the contract or agreement	145
for like work performed during the workday or work week.	146

Sec. 4111.031. (A) An employee other than an employee	147
described in division (J) of this section may receive, in	148
accordance with this section and in lieu of monetary overtime	149
compensation, compensatory time off at a rate of not less than one	150
and one-half hours for each hour of employment for which monetary	151
overtime compensation otherwise is required under division (A) of	152
section 4111.03 of the Revised Code.	153

(B) An employer may provide compensatory time off to an	154
employee under this section only in accordance with the following	155
provisions and conditions:	156

(1) The applicable provisions of a collective bargaining	157
agreement between the employer and the employees' exclusive	158
representative that is designated or selected under section 9(a)	159
of the "National Labor Relations Act," 49 Stat. 449 (1935), 29	160
U.S.C. 159(a), as amended;	161

(2) In the case of employees who are not represented by a	162
labor organization as provided in section 9(a) of the "National	163
Labor Relations Act," 49 Stat. 449 (1935), 29 U.S.C. 159(a), as	164
amended, an agreement or understanding arrived at between the	165
employer and employee before the performance of the work involved,	166
if the agreement or understanding is entered into knowingly and	167
voluntarily by and at the initiation and request of the employee,	168
and is not a condition of employment;	169

(3) The employee has affirmed in a written or otherwise	170
verifiable statement that the employee has initiated a request to	171
receive compensatory time off in lieu of monetary overtime	172
compensation and the employer keeps a record of that statement	173
with the employee's employment records that the employer is	174
required to make and keep under section 4111.08 of the Revised	175
Code;	176

(4) The employee has not already accrued two hundred forty	177
hours of compensatory time off.	178

(C)(1) Not later than the thirty-first day of January of each	180
calendar year, an employer shall provide monetary overtime	181
compensation at the rate prescribed by division (G) of this	182
section for any unused compensatory time off that the employee	183
accrued during the preceding calendar year. An employer may	184
designate and communicate to its employees an alternative	185
twelve-month period other than the calendar year, in which case	186
the monetary overtime compensation payment required by this	187
division shall be paid not later than thirty-one days after the	188
end of the alternative twelve-month period.	189

(2) At any time during the calendar year or alternative	190
twelve-month period, an employer may provide monetary overtime	191
compensation at the rate required by division (G) of this section	192
for an employee's unused compensatory time off in excess of	193
eighty hours. The employer shall give the employee written notice	194
of the employer's intent to provide that compensation at least	195
thirty days before doing so.	196

(D) An employer that provides compensatory time off to an	197
employee under this section may cease doing so upon giving the	198
employee written notice of the employer's intent at least thirty	199
days before discontinuing the practice.	200

(E) An employee may withdraw an agreement or understanding	201
described in division (B)(2) of this section at any time and may	202
request in writing that monetary overtime compensation be provided	203
for all of the employee's unused compensatory time off. Within	204
thirty days after receipt of the written request, the employer	205
shall pay to the employee the monetary overtime compensation due	206
in accordance with division (G) of this section.	207